SZDTN v Minister for Immigration - [2005] FMCA 1293

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDTN v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1293

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Lebanon as a member of the Lebanese Forces Militia – applicant notified change of address – s.425 notice sent to incorrect address – Tribunal proceeded to make decision on review pursuant to s.426A – want of procedural fairness found – discretion exercised to refuse relief on ground of unexplained delay of at least 13 months between notice of Tribunal decision and filing of application for judicial review.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425; 425A; 441A

SZDOG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 972
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Applicant M70 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 132
Das v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 489

Applicant:

SZDTN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1719 of 2004

Judgment of:

Emmett FM

Hearing date:

22 August 2005

Date of Last Submission:

22 August 2005

Delivered at:

Sydney

Delivered on:

8 September 2005

REPRESENTATION

Counsel for the Applicant:

Mr D. Pullinger

Solicitors for the Applicant:

Mr J. Hajje, J Hajje & Associates

Counsel for the First Respondent:

Mr J. Potts

Solicitors for the First Respondent:

Mr A.J. Crockett, Australian Government Solicitor

ORDERS

That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the applications filed in this Court be dismissed.
That the Applicant pay the costs of the Respondent as agreed or taxed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1719 of 2004

SZDTN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) not to grant a protection visa to the Applicant.
The Applicant claims to be a citizen of, and formerly resident in, Lebanon, or otherwise stateless.
The Applicant arrived in Australia on 14 February 2000.
On 10 May 2000, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”) claiming that he was a person to whom Australia owes protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol on the basis that he will be subjected to torture, amounting to persecution, by the Lebanese authorities and the Syrian government if he were to return to Lebanon.
On 21 June 2000, the delegate refused the Applicant’s application for a protection visa on the basis that the Applicant does not face a real chance of persecution by the Lebanese or Syrian authorities and does not have a well founded fear of persecution for a Convention related reason if he were to return to Lebanon and is, therefore, not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The Applicant’s claims

The Applicant’s claims were contained in 2 documents, one a statement by the Applicant in support of his protection visa application and the second in his statement in support of his application for review.
The Applicant stated that he had a wife and 2 children in Lebanon. And that he had worked as a tiler between 1994 and 2001. The Applicant claimed that in 1977 he was a soldier with the Phalangist Party in Lebanon until he joined the Lebanese Forces Militia (“the LF”) in 1980. The Applicant stated that he left the LF between 1983 and 1986 and conducted a business as a leather goods maker. The Applicant claimed that from 1986 to 1994 he rejoined the LF. He stated that he would “quite often have intelligence or security personnel knock on my door and take me for questioning usually to the army base at the museum area of Beirut…because of my role in the Lebanese Forces Party and militia during the war”.
The Applicant claimed that, if he was sent back to Lebanon, he would be arrested by the Lebanese authorities, that the Syrian intelligence would want to question him and that he would be intimidated, threatened, and beaten. The Applicant referred in his application to an incident on Good Friday, 21 April 2000, when an unidentified group of people entered the area in which his wife was living, and attacked, threatened, and intimidated Christian residents and women. The Applicant said his wife informed him that 3 plain clothed people, 1 with a Lebanese accent and 2 with Syrian sounding accents, came to his home and demanded the Applicant hand himself over for questioning regarding the Good Friday incident. The Applicant claimed that the Lebanese authorities would not be able to protect him if he were to return to Lebanon as they had been responsible for his mistreatment in the past.
In his statement in support of his application for review, the Applicant expanded on his claims of harassment from the Lebanese authorities claiming that they arrested him without a search warrant, beat him, threatened him, intimidated him and forced him to sign documents stating that he would not participate in political activities. The Applicant claimed that during the 3 years he worked as a tiler, he continued to be harassed and intimidated by Lebanese authorities, including the involvement of Syrian intelligence. However, no further particulars were provided.

The Tribunal proceeding

On 19 July 2000, the Applicant filed an application for review of the delegate’s decision by the Tribunal.
On 19 July 2000, the Tribunal wrote to the Applicant informing him that if he had any new documents or written evidence he should send them to the Tribunal as soon as possible. The letter also stated that it was very important that the Applicant tell the Tribunal in writing if he changed his telephone number, home address or his address for service. The letter went on to say:
“If we are unable to contact you, or if you do not respond to our letters, you may lose your opportunity to appear before the Tribunal and give evidence in your case.”
By letter dated 3 April 2002, the Tribunal invited the Applicant to attend a hearing on 2 May 2002 and notified the Applicant that it was not prepared to make a decision favourable to the Applicant on the material presently before it. That letter was addressed to the Applicant at the address identified by him in his application for review. It requested a response by 19 April 2002.
On 20 May 2002, the Tribunal’s letter dated 3 April 2002, inviting the Applicant to a hearing, was returned to the Tribunal marked ‘Return to Sender’.
The Tribunal proceeded to conduct its review and made its decision on 10 May 2002 without offering a further opportunity to the Applicant to attend a hearing. The Tribunal’s decision was handed down on 5 June 2002 in the absence of the Applicant.
The Tribunal noted that the Applicant had not provided details as to his role in the LF during the civil war and the nature of his involvement with the LF after the civil war and particularly after 1994. The Tribunal observed that the Applicant did not provide details as to how often he was taken away for questioning, for how long or the nature of the questioning. The Tribunal also noted there were no details as to the nature of intimidations and threats and how or why the Applicant was beaten. Further, the Applicant provided no details or reasons why the Lebanese intelligence would have been looking for him following the event of 21 April 2000.
The Tribunal was not satisfied, in the circumstances, that the Applicant was being pursued by the Lebanese intelligence following the 21 April 2000 incident.
Further, the Tribunal noted that the Applicant lived in the same house from 1994 to 2000, had no difficulties in obtaining travel documents and left Lebanon legally.
The Tribunal noted that independent information established that it was almost certain that anyone wanted by either Lebanon or Syrian authorities would be detained and not be able to leave Lebanon. The Tribunal also noted independent information stating that it was most unlikely that the Syrians would actively pursue individuals whom they regarded as low level offenders.
The Tribunal was not satisfied that the Applicant had a well founded fear of persecution or was of any interest to the Lebanese or Syrian authorities before leaving Lebanon for reason of his membership in the LF.
The Tribunal concluded that, in view of the lack of detail contained in the Applicant’s claims, it could not make findings of fact in relation to his claims. On the material before it, the Tribunal was not satisfied that the Applicant had been persecuted for a Convention reason in the past, or that there is a real chance he would be persecuted for a Convention reason in the reasonably foreseeable future.
Accordingly, the Tribunal found that the Applicant did not have a well founded fear of persecution for a Convention reason and was therefore not a refugee under the Refugees Convention as amended by the Refugees Protocol.

The proceeding before this Court

On 4 June 2004, the Applicant filed an Application in this Court seeking judicial review of the Tribunal’s decision.
The Applicant filed an Amended Application on 16 November 2004 claiming relief on the ground that he was not accorded an opportunity to be heard by the Tribunal.
The Applicant claimed that he did not receive the Tribunal’s invitation to a hearing, dated 3 April 2002, because it was not sent to the address notified by him, in a notice of change of address lodged with the Department, on 23 November 2000. Instead, the Tribunal’s invitation had been sent to the Applicant at the address provided by him in his review application filed 19 July 2000.
The Applicant submits that the Tribunal denied procedural fairness to the Applicant by proceeding to make its decision in circumstances where it had not complied with s.425A of the Act. Alternatively, the Applicant contends that if this Court holds that the Tribunal did comply with s.425A of the Act, then the Tribunal exercised its discretion to proceed based on a factual error that was critical to its decision, namely, that the Applicant had received the Tribunal’s invitation to a hearing. To my mind, the alternative claim is misconceived. If this Court held that the Tribunal had complied with s.425A of the Act, then the Tribunal’s invitation is deemed, pursuant to s.441A of the Act, to have been given to the Applicant. In those circumstances, there would be no denial of procedural fairness by the Tribunal to the Applicant.
Section 425, as at 5 June 2002, stated, relevantly, that:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 425A, as at 5 June 2002, stated, relevantly, that:
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2)The notice must be given to the applicant by one of the methods specified in section 441A.
Section 441A, as at 5 June 2002, is set out as follows:
(1)A document specified in subsection (3) is taken to be duly given to an applicant for review if:
(a) the document is sent (physically, electronically or otherwise) to:
(i) the last address for service provided by the applicant in connection with his or her application for review; or
(ii) the last residential address provided by the applicant in connection with his or her application for review; and
(b)the Tribunal has a receipt or otherwise evidence indicating the date of dispatch.
(2)A document specified in subsection (3) is taken to be duly given to an applicant for review if the document is given:
(a)by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or
(b)by leaving it at the applicant’s place of residence with a person who appears to live there and appears to have turned 16.
(3)The documents specified for the purposes of subsections (1) and (2) are:
(a)an invitation to an applicant under section 424 (other than an invitation to an applicant who is in immigration detention); and
(b)an invitation under section 424A (other than an invitation to an applicant who is immigration detention); and
(c) a notice under section 425A (other than a notice to an applicant who is in immigration detention); and
(d)a notice under section 430A; and
(e)a statement given under subsection 430B(6)
(4)It is sufficient compliance with the requirement to give a document referred to in subsection (3) if a facsimile, or a certified copy, of the document is so given.
(5) A document posted in accordance with paragraph (1)(a) must bear correct prepaid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate.
In summary, relevantly, s.425 requires the Tribunal to invite the Applicant to attend a hearing. Section 425A requires that an invitation to attend a hearing (“s.425A notice”) must, inter alia, be given to the Applicant in accordance with s.441A. Section 441A sets out, inter alia, the manner in which a s.425A notice is to be given to the Applicant.
For the reasons above, only the following 2 issues arise:
a)Whether or not the Tribunal failed to comply with s.425A of the Act, such that it was not entitled to proceed to conduct its review without taking any further action to allow or enable the Applicant to appear before it.
b)Whether, if the Tribunal’s decision was affected by jurisdictional error, this Court should grant the relief sought having regard to the Applicant’s delay in filing his Application seeking constitutional writ relief.

a) Whether or not the Tribunal complied with s.425A of the Act, such that it was entitled to proceed to conduct its review without taking any further action to allow or enable the Applicant to appear before it.

The First Respondent accepts that the Applicant lodged a notice of change of address with the Department that was received by the Tribunal on 23 November 2000. However, I note that in its letter, dated 19 July 2000, the Tribunal informed the Applicant that he would receive an acknowledgment from the Tribunal of receipt of any change of address. No such acknowledgment was sent to the Applicant.
The First Respondent accepts that the Tribunal’s invitation, sent on

3 April 2002, was not sent to the Applicant’s new address. It was sent to the Applicant’s address as identified in the review application filed 19 July 2000. A copy of the invitation was also sent to the adviser identified by the Applicant in his review application.
The First Respondent contends that notice was given to the Applicant in accordance with s.425A of the Act. Section 425A of the Act states, relevantly, that notice must be given to an applicant by one of the

3 methods specified in s.441A (s.425A(2)(a) of the Act).
Section 441A of the Act, relevantly, states that a s.425A notice is taken to be duly given to an applicant if the notice is sent to the last address for service, or the last residential address, provided by the applicant in connection with his application, and the Tribunal has evidence of the date of dispatch (s.441A(1) of the Act). Such a notice is also taken to be duly given to an applicant if it is given to a person authorised by the applicant to receive documents of that kind on behalf of the Applicant (s.441A(2)(a) of the Act).
The First Respondent contends that, pursuant to s.441A (2)(a) of the Act, a s.425A notice may be given to the Applicant’s adviser, being a person authorised by the Applicant to receive documents of that kind on behalf of the Applicant. The First Respondent further contends that the s.425A notice may, according to s441A(1), be “given” by being posted to the adviser.
However, s.441A(1) requires that the document, being the s.425A notice, be sent to the last address for service or the residential address provided by an applicant in connection with his or her review application.
Paragraph 8 of Section B of the Applicant’s review application, nominates the Applicant’s address for service as his residential address. In September 2000, the Applicant moved from that address. On

23 November 2000, he lodged with the Department a notice of his change of address.
Accordingly, the Tribunal did not comply with s.441A(1) in that it did not send the s.425A notice to the Applicant’s last address for service or his last residential address.
I know turn to consider if the Tribunal gave the s.425A notice to the Applicant, in accordance with s.441A(2), by sending it to the Applicant’s adviser. Section 441A(2)(a) and (3)(c) provide, relevantly, that a s.425A notice is taken to be duly given to the Applicant if it is given to a person authorise by the Applicant to receive such a document. The First Respondent submits that s.441A(1) provides, relevantly, that a document such as a s.425A notice can be posted.
Paragraph 11 of Section B of the application for review asks:
“Do you have an adviser you authorise to act for you in relation to this application (for example a lawyer or a migration agent)?”
A Yes/No box is then provided followed by the name and contact details of such adviser. The paragraph concludes with the words:
“The Tribunal will send copies of all correspondence to your adviser.”
Assuming the First Respondent’s contention that a s425A notice is duly given to the Applicant if posted to his adviser, paragraph 11 Section B of the review application does not state that the Applicant’s adviser is to be a person authorised to receive documents, such as a s.425A notice, or, indeed, any documents. Paragraph 11 of Section B simply notes that “the Tribunal will send copies of all correspondence to your adviser”. To my mind, an applicant would be entitled to expect that he was the person primarily dealing with correspondence from the Tribunal and would be receiving the originals of all correspondence.
I do not accept that, by informing the Tribunal, by completing paragraph 11 of Section B, whereby an applicant identifies the name and contact details of an adviser authorised to act for him in relation to the application, an applicant was intending that receipt of documents by an adviser was deemed notice to him of such documents. Without evidence to the contrary, it seems to me that this would be particularly so with a document as critical as a s.425A notice inviting an applicant to attend a hearing. By completing paragraph 8 of Section B, the Applicant specifically identified his address for service and it was not the address of his adviser. The Applicant could have chosen to have identified the adviser’s address as his address for service. He clearly chose to retain control of documents to be served upon him by requiring that they be sent to his nominated address for service. The Applicant would be entitled to expect that the original of the s.425A notice would be sent to him at his latest nominated address for service or, pursuant to s.441A(1)(a)(ii), his residential address. The s.425A notice was not sent to the Applicant’s latest nominated address for service or residential address.

Accordingly, in the circumstances, posting a s.425A notice to the Applicant’s adviser is not compliance with the deeming provision of s.441A(2)(a) of the Act in that the adviser is not a person authorised by the Applicant to receive a s.425A notice.
In the circumstances, the Tribunal was not entitled to proceed with its decision on the review without, in accordance with s.425 of the Act, inviting the Applicant to attend a hearing. In proceeding as it did, the Tribunal denied the Applicant procedural fairness and, accordingly, its decision was affected by jurisdictional error.

b) Whether, if the Tribunal’s decision was affected by jurisdictional error, this Court should grant the relief sought having regard to the Applicant’s delay in filing his Application seeking prerogative relief

The last question for consideration, is whether or not the Applicant should be entitled to the relief he seeks, having regard to his delay in seeking judicial review in this Court, 1 day short of 2 years after the decision of the Tribunal was handed down. The Applicant offers no reason for the delay other than the oral evidence before me today from the Applicant’s sister that the adviser, upon whom the Applicant relied, was ill at some point in time. However, the sister did not suggest that the agent’s illness was responsible for any delay on the part of the Applicant in filing his application for judicial review in this Court.
One commences such consideration in the light of the proposition that, in the event that a decision of the Tribunal is invalid for want of procedural fairness, in the absence of any delay, waiver, acquiescence or unclean hands on the part of the Applicant, there is no reason to withhold discretionary relief (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) at [84] and [211]).
As identified by Gaudron and Gummow JJ in Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [109] and cited in SAAP at [207]:
“the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision making procedures rather than with the character of the decision which emerges from the observance of those procedures.”
Gleeson CJ in SAAP at [21] observed:
“It is agreed on all sides that the hearing contemplated by s.425 is not a trial. Subject always to the overriding requirement of procedural fairness, the object of the occasion is to hear evidence and receive arguments in the most useful and efficient manner. This will often involve flexibility in the order of proceedings.”
Whilst I note that the Tribunal decision was sent to the Applicant at the incorrect address, although copied to his adviser, I have regard to the statutory declaration made by the Applicant’s sister dated 1 May 2003 and attached to the Applicant’s outline of submissions before this Court. That statutory declaration makes it clear that, at least from 1 May 2003, the Applicant’s sister was aware of the Tribunal decision and that the Department did not have the Applicant’s correct address. There is not, otherwise, any evidence from the Applicant as to how or when he became aware of the Tribunal’s decision.
However, the Applicant would have been aware that he had not received from the Tribunal any acknowledgement of receipt of his notice of change of address. The Tribunal’s letter, dated 19 July 2000, informed him that the Tribunal would acknowledge receipt of any notice of change of address. The Applicant did not provide any evidence of any step taken to enquire of the Tribunal why his notice of change of address had not been acknowledged. Had he done so, it would have become apparent to him that he had not provided his notice of change of address as directed by the Tribunal in its letter dated

19 July 2000. The notice of change of address was provided by the Applicant to the Department and not the Tribunal. However, before this Court, the First Respondent conceded that the Tribunal, whilst unaware, had received the notice of change of address prior to its decision.
In any event, having regard to the fact of the involvement of the Applicant’s sister in the Applicant’s proceeding before this Court and the fact that the Applicant lives with her, I am satisfied that the Applicant was aware, at least from around 1 May 2003, of the Tribunal’s decision. The letter from the Tribunal, notifying him of its decision, was sent on 5 June 2002 to the incorrect address. The letter informed the Applicant of his limited review rights and stating that:
“There are strict time limits within which an application for review before the Courts must be filed. I strongly advise you to promptly seek legal advice if you seek review by the Courts.
If you have any questions about your current residency status in Australia you should contact your regional office of the Department of Immigration and Multicultural and Indigenous Affairs.”
The Applicant did not provide evidence of when he first saw that letter. However, he was aware of the Tribunal’s decision from around 1 May 2003. As stated earlier, the Applicant provided no evidence as to how he became aware of the Tribunal’s decision.
The Applicant did not file in this Court until 4 June 2004. This was some 13 months from the latest date, being around 1 May 2003, of which I am satisfied the Applicant was aware of the Tribunal’s decision. The Applicant offered no evidence of any reason for the delay. Nor did he provide any evidence of any steps taken by him, after he became aware of the Tribunal decision, to obtain any legal advice or make any enquiry as to his residency status, irrespective of whether he had seen the Tribunal’s letter dated 2 June 2002.
In considering the delay by the Applicant for 13 months in filing an application for judicial review of the Tribunal’s decision by this Court, I have regard to the comments of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (“Ex parte Marks”) at [15] in which he said the following:
“Where an applicant seeks the issue of constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases.”
(applied in Applicant M70 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 132, and cited in Das v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 489).
In considering whether the Court should exercise its discretion to grant the relief as sought in the Application, I have regard to the unexplained delay by the Applicant, albeit that there is no specific time requirement in this Court in which the Applicant should seek constitutional writ relief. In Ex parte Marks, McHugh J stated at [16] that:
“The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.”
The nature of constitutional writ relief, as referred to by McHugh J in Ex parte Marks, makes it clear that one must consider the public interest in there being efficacy in public acts, decisions and judgments which cannot be allowed to become “hostage of an applicant’s search for favourable legal advice’’ (Ex parte Marks at [17]). His Honour went on to say that, in all but exceptional cases, the inability of an applicant to obtain favourable advice within 2 months for mandamus and 6 months for certiorari is a strong indicator that the applicant has no case for relief. To enlarge the time for commencing proceedings by many months, the case would need to be exceptional and the explanation for such a delay is a relevant consideration (Ex parte Marks at [17]). I do not regard the Applicant’s case as “exceptional”.
Moreover, the Applicant has not provided any evidence of any further material he would have provided to the Tribunal at a hearing or what oral evidence he may have give, were he given an opportunity to appear at a hearing. The Tribunal’s reasons make it clear that it considered the Applicant’s claims in the light of the material before it, together with the independent country information, and was not satisfied that the Applicant had a well founded fear of persecution for a Convention reason. In the absence of any other evidence, any further judicial review of the Tribunal’s decision is likely to be doomed to failure.
I have considered the consequences that flow to the Applicant, were I to exercise my discretion to refuse to grant the relief sought, particularly, where I have found that there was an absence of procedural fairness on both bases claimed.
However, in balancing the interests of justice to the community in having such administrative decision making finalised and the interest of the Applicant in having an opportunity to have his claims heard and considered according to law, I am satisfied that the delay of 13 months in seeking constitutional writ relief from this Court, occasioned solely by the Applicant without explanation, is undue and the relief sought should not be granted.
Accordingly, the Applicant’s applications before this Court are dismissed.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 8 September 2005